*1 J., KIRSCH, J., BAKER, con- Sheriff.
cur. GIBBS, Appellant-Defendant,
Michael E. Indiana, Appellee-Plaintiff.
STATE
No. 79A02-9603-CR-155. Appeals of Indiana.
Court
March 1997. May
Transfer Denied Knecht, Knecht, &
Steven Vonderheide P.C., Lafayette, Appellan1>-Defendant. *2 H07 Carter, General, Attorney him in Pamela Lisa M. toward the northbound lane. After Paunieka, General, Deputy Attorney lights got India- faint approxi- the within a distance napolis, Appellee-Plaintiff. block, mately equal city to a Brookbank bright lights
turned on his
and could then
lights
yellowish
discern that the faint
OPINION
were
very
parking lights
and
dim
on a car that had
FRIEDLANDER, Judge.
him,
headlights.
passed
no
As that ear
Bro-
trial,
Following a bench
Michael E. Gibbs
dark-colored,
okbank observed that it
awas
Homicide,1
was convicted of Reckless
a class
then,
older car.
Just
Brookbank became
James,
felony,
C
for the death of John P.
coming up
aware of a car
from behind him
who was killed when the car he was
immediately
and
heard a collision.
being
collided with the car
driven
Gibbs.
Tippecanoe County Deputy Sheriff Brad
presented
appeal
The sole issue
on
Bushman testified that he arrived at
the
whether
sufficient evidence was
approximately
crash scene at
5:45 a.m.
specifically
sustain Gibbs’s conviction. Gibbs
observed, among
things,
Bushman
a
present-
claims that insufficient
Impala
black 1978 Chevrolet
with extensive
(2)
reckless,
ed that
his conduct was
damage to the front of the car. Bushman
voluntary,
actions were
and
his actions
headlight
checked the
Impala
switch on the
were the direct and
cause of the
pulled
and found that it had been
out
collision that resulted in James’s death.
notch,
one
which indicated that the
We affirm.
on,
lights
had been
but not the
The facts most favorable to the
Kirby
Tippecanoe
Lieutenant Mark
that,
3,1995,
January
approximate-
on
at
County
that,
Department
Sheriff’s
testified
a.m.,
Hiatt,
ly 5:15
Mark
a truck driver for
ap-
when he arrived at the crash
at
scene
Bread,
County
Wonder
on
Road
a.m.,
proximately 6:00
he observed Gibbs’s
Lafayette.
got
650 North in
When he
Impala
on the east side of the
County
intersection of
Road 650
North
James’s Mitsubishi down an embankment on
turning
State Road 43 and started
onto
south
According
the west side of the road.
headlights
step
State Road
the
of his
van
Kirby,
traveling
the Mitsubishi was
south-
caught glimpse
illuminated the road and he
point
bound in the northbound lane at the
dark-colored,
traveling
older-model car
impact
Impala.
with the
northbound on State Road 43 near the inter-
County
section of
Road 650 North at about
Kirby found no alternator drive
on
belt
fifty
fifty-five
per
miles
hour. At the
Impala,
headlights
and its
showed evidence
time,
Hiatt was
hit
afraid
he
shock,”
they
of “cold
which indicated that
barely
car
it
car
because was
visible. The
were not
at
illuminated
the time of the crash.
headlights;
had no
the front of the car had
also observed evidence of “hot shock”
very
lights
barely glowed.
dim
Impala’s parking lights,
which indicated
Hiatt estimated that the
on the front of
that those
were on at the time of the
they
the car became visible to him when
crash.
were, most,
away.
at
ten to fifteen feet
After
pulled
Hiatt
out onto
Road
he
State
Barrette,
Roger
a consultant
traffic acci-
looked in his rear view mirror and observed
reconstruction,
investigation
dent
testi-
taillights.
car
also had no
headlights
fied that he examined the
from
Impala
and found no “hot shock” and no
Phillip L. Brookbank testified that he was
other evidence which would indicate that the
headed southbound on
Road 43 on
3, 1995,
headlights
impact.
were on at the time of
January
at
a.m.
5:15
dark”,
“pitch
He observed a small amount of “hot shock”
that was
Record at
up
gas pedal
parking lights,
suggested
which
outside. Brookbank let
very
lights moving they
very
impact.
faint
when he observed
were
dim the time of
(West 1986).
§
Ind.Code Ann.
35-42-1-5
transcript
on his own behalf and
introduced at trial a
Gibbs testified
The State
during
told an
first
he noticed that his
which Gibbs
claimed
of an interview
representative
headlights
becoming
claims
when
were
dim was when he
insurance
collision,
County
approaching
left home on the
Road 43
he
was on State
During
ear
on.
point,
on his
Road 800 North. At that
he slowed
interview,
pertinent part:
approximately forty-five
stated
his car down to
*3
fifty-five
per hour and moved the car
miles
lights.
I
off of
onto 43
I had all
come
65
edge of the road. He
toward the outside
Well,
something
I
click.
then
heard
that
claimed
he could then see
light
put,
come on.
I
told
my generator
So
The next
one hundred feet down the road.
Roger,
I think I
an alterna-
I said
busted
thing
coming
he saw
a car
him
toward
with,
got
we
we
tor belt. So here
pull out
first.
and another one
around the
said, Roger,
going
the road and I
I
down
get
He tried to
off the
but was unable
said,
They’re
losing headlights.
get-
we’re
quickly enough
to do
to
collision.
so
avoid the
time, Roger
ting
About that
looked
dim.
pushed
denied that he ever
the knob
says,
up
says watch it. He
some-
in
that
for the
so
body’s trying,
trying
pass
some idiot’s
to
lights were on.
somebody else.
sufficiency
in
The standard of review
cases
Record at 317.
weighing
is well settled. Without
the evi-
East,
Roger
who was
the car with Gibbs
witnesses,
judging
credibility
dence or
crash,
at the time of the
testified at trial on
solely
we look
to the evidence most favorable
Gibbs’s behalf. East
testified that he and
and all
infer-
reasonable
way to work at the
Gibbs were on their
State,
ences drawn therefrom.
v.
Coleman
before the
the crash. East testified
(Ind.1986).
H09 State, Taylor v. 3.Causation merely negligent.” (Ind.Ct.App.1983). n. 6 N.E.2d claim that his conduct was Gibbs’s proximate
not the cause of the direct 1. Reeldessness victim’s death is without merit. its of establish- order to sustain burden presented sufficient evidence The State ing causation in homicide element conviction.
reeldessness
sustain Gibbs’
prosecutions,
show
need
contributed
the defendant’s conduct
at trial
The evidence
estab
mediately
immediately
to the death of
that Gibbs’s actions were reckless and
lished
words,
person.
another
the State
merely negligent.
not
When Gibbs chose
reckless-
prove
must
defendant’s
operate
very
on a
dark
continue to
his vehicle
ness is the direct and
cause of
during
early
highway
hours
*4
the victim’s death.
headlights,
plain,
acted with a
without
he
A finding
of
cause embodies a
conscious,
unjustifiable disregard
and
the
of
value
as to the extent of the
might
harm that
result.
physical consequences
an action for
of
responsible.
which the actor should
held
be
2. Voluntariness
“proximate
Accordingly,
questions
cause
are often couched
terms of ‘foreseeabil-
unpersuaded by
areWe
Gibbs’s claim
ity;’
responsible
an actor is not held
presented that
that insufficient evidence was
consequences which are unforeseeable.”
voluntarily
drove
he
without
that,
intervening
It
where
follows
an
cause
(1)
Gibbs testified at trial
his head-
superseding
is claimed as
the defendant’s
lights
functioning properly when
he left
actions,
intervening
be un-
the
cause must
the crash
home
and when
to relieve
foreseeable
the defendant
(2)
home,
picked up East at his
before he
he
liability.
criminal
got to
Road
had no
State
43 he
indication
(citations
Warner,
omit-
577 N.E.2d
270
alternator,
(3)
any problem with
he
ted).
lights for
problem
with his
the first
noticed
they suddenly
unpersuaded by
when
became dim he
as
We are
Gibbs’s
(1)
County
shortly
approaching
was
Road 800
claims
had func
because his vehicle
tional,
collision.
also testified
he
time of
operating
before the
at the
alternator,
starter,
collision,
replaced the
had
and bat-
the
it was
that James
unforeseeable
attempt
tery in his car within a few weeks
the would
lane and
before
enter
northbound
(2)
car,
pass
act of
crash.
to
another
James’s
was an
attempting
pass
to
such a situation
claims on appeal
Gibbs
when the
super
intervening cause of
collision that
dimmed,
suddenly
had
he
seded
actions.
Gibbs’s
(1)
to continue to drive
Brook-
choices:
Judgment affirmed.
(2)
ston,
immediately into
to drive
the field
road, park,
and walk. He
on the side
NAJAM, J., concurs.
essentially
the second choice
contends
dark,
cold,
unreasonable
it was
because
SULLIVAN, J.,
separate
dissents with
to walk
Road 43
and unsafe
on State
under
opinion.
these conditions. He claims
his situa-
may
those in
tion
be contrasted with
other
SULLIVAN, Judge, dissenting.
cases where defendants made affirmative
ques
The
at the time
conduct Gibbs
effect,
recklessly.
In
to drive
choices
“reckless
tion
not rise to
level of
does
asking
reweigh
is
court
this
justify a
of a Class
ness” so as to
conviction
appeal.
on
This we will not do.
felony.
Ind.
C
In Nordstrom v. State
1380,
App.,
this court acknowl
627 N.E.2d
Sufficient evidence
voluntariness
edged
must neces-
that criminal recklessness
to sustain Gibbs’s conviction.
sarily
egregious than
King,
be more
an act of com-
involuntary
conviction was for
negligence.
manslaughter
mon law
which under state law was de-
killing
accidentally,
fined as “the
of one
con-
recklessly
person
“A
if he or she
trary
parties,
intention of the
conscious,
engages
plain,
in conduct in
unlawful,
prosecution of some
but not feloni-
unjustifiable disregard
of harm that
ous, act...”
HU constituting forth various which sets driving categorizes those acts of
reckless serious B misde- as more Class
recklessness analysis logical A of the two stat-
meanors. to conclude that our would lead one
utes operat- contemplate that
legislature did not only parking dis-
ing a vehicle with criminal reckless-
played would constitute
ness. stated, I reverse reasons would
For the conviction and remand
the reckless homicide discharge the defendant.2
with instructions Indiana, Appellant-Plaintiff,
STATE
Timothy FARBER, Appellee- R.
Defendant.
No. 82A05-9509-CR-372. Appeals of Indiana.
Court of *6 26, 1997.
March June 1997.
Transfer Denied felony, bodily injury, would a Class C light my applicable serious view of the law us, I would further conclude that facts before be erroneous. likewise resulting in for criminal recklessness conviction